United States of America, by Raymond J. Donovan, Secretaryof Labor, Plaintiff- Appellee, v. Howard Electric Company, a Corporation, Defendant-appellant, 798 F.2d 392 (10th Cir. 1986)

On September 26, 1983, the United States of America, acting through Raymond J. Donovan, Secretary of Labor (Secretary), commenced an action in Colorado federal district court against Howard Electric Co. (Howard). The action sought collection of a penalty previously assessed by an Administrative Law Judge (ALJ) in proceedings before the Occupational Safety and Health Review Commission (Commission). Howard and the Secretary filed cross motions for summary judgment. Howard contended that the district court did not have jurisdiction to order payment of the penalty because the Commission lacked subject matter jurisdiction to assess the penalty. The Secretary argued that the district court could not review the ALJ's determination of subject matter jurisdiction and was thus bound by the ALJ's decision. The district court denied Howard's motion and granted summary judgment in favor of the Secretary, awarding the Secretary the amount of the penalty as assessed. Howard appeals this order of the district court. We affirm.

On April 1, 1980, the Secretary cited Howard pursuant to 29 U.S.C. § 658(a)¹  for violating certain provisions of the Occupational Safety & Health Act of 1970, 29 U.S.C. §§ 651-678 (OSHA). The citation directed payment of an $8000 civil penalty. Howard timely submitted its notice of contest in accordance with 29 U.S.C. § 659(c), which was served on the Secretary April 14, 1980. On April 30, 1980, the Secretary filed a motion to stay the proceeding, pending a determination as to whether criminal action should be pursued against Howard. The Commission granted the stay, but limited it to a period of sixty days.

On March 5, 1981, approximately 225 days after the expiration of the Commission's order, the Secretary filed a motion to indefinitely extend the stay of proceedings. The Commission granted this motion. On February 1, 1982, the Commission entered an order requiring the Secretary to report on the status of this matter, and called for a response within twenty days. Finally, on March 11, 1982, the Secretary responded, filing its motion to vacate the stay order along with its complaint. 29 C.F.R. Sec. 2200.33(a). The Commission granted the motion and accepted the complaint. The complaint was filed 596 days after the Commission's original stay had expired. The Secretary never sought leave to file a late pleading as required by 29 C.F.R. Sec. 2200.5 because he believed that the initial stay was to apply indefinitely.

In answering the complaint pursuant to 29 C.F.R. Sec. 2200.33(b), Howard raised the defense that the Commission did not have jurisdiction over the subject matter of the proceedings due to the Secretary's failure to file a timely complaint. The ALJ considered the issue, and concluded that the Commission's jurisdiction was established when Howard filed its notice of contest, and that Howard had confused the jurisdictional defense with a defense of an untimely and unauthorized complaint. The ALJ found that the Commission did have subject matter jurisdiction, and that the Secretary had not acted in such purposeful disobedience of Commission rules to warrant dismissal.

The order of the ALJ was mailed to the parties, accompanied by a notice of decision which advised the parties that the order would become the final order of the Commission on December 6, 1982, unless a member of the Commission directed that the order be reviewed. 29 U.S.C. §§ 659(c) and 661(j). Howard contends that it never received this mailing, but does not dispute that it received a copy of the ALJ's order or that it was aware of the Commission review procedures. Moreover, Howard submitted a timely petition for review of the ALJ's decision on December 2, 1982, specifically alleging that the ALJ's decision regarding jurisdiction was erroneous. 29 C.F.R. Sec. 2200.91. No member of the Commission directed the case for discretionary review, and the ALJ's decision became a final order of the Commission on December 6, 1982. 29 U.S.C. §§ 659(c) and 661(j); 29 C.F.R. Secs. 2200.90(b) (3) and 2200.91(d).

After the ALJ's decision became the final order of the Commission, Howard had sixty days in which to obtain judicial review of the decision by the court of appeals. 29 U.S.C. § 660(a). Howard never pursued such appeal.

On April 13, 1983, the Secretary requested payment of the penalty. Howard refused. The Secretary filed the action to collect the penalty in federal district court. 29 U.S.C. § 666(l). Cross motions for summary judgment were filed, and both Howard and the Secretary stipulated that such motions were dispositive of the case. In granting the Secretary's motion, the trial judge found that the ALJ's decision was not subject to collateral attack, and that Howard's collateral attack amounted to an attempt by Howard to obtain judicial review of the ALJ's decision by the district court.

Howard argues that the Commission's decision is subject to collateral attack in the district court because the decision is based upon the jurisdiction of the Commission, and thus goes to the validity of the Commission's order. Howard contends that the district court may rule on the Commission's jurisdiction, because if the Commission's exercise of jurisdiction was improper² , the penalty assessment was void and cannot be enforced. We disagree.

" [T]he mode of challenging an agency's jurisdictional decision is by direct attack. Callanan Road Co. v. United States, 345 U.S. 507, 512, 73 S. Ct. 803, 806, 97 L. Ed. 1206 [1953]. A party may not collaterally attack the validity of a prior agency order in a subsequent proceeding." McCulloch Interstate Gas Corp. v. Federal Power Comm'n, 536 F.2d 910, 913 (10th Cir. 1976). In the present case, as in McCulloch, the appellant was given a direct, exclusive means by which to gain judicial review of the agency's jurisdictional determination in the court of appeals, but failed to pursue that remedy.

The district court action provided for in 29 U.S.C. § 666(l)³  is a collection procedure only, while the determination of violation and penalty is left to the administrative process. Mohawk Excavating, Inc. v. Occupational Safety and Health Review Commission, 549 F.2d 859, 863-64 (2nd Cir. 1977). " [N]either the fact of the violation nor the propriety of the penalty assessed may be retried" in the district court action. Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 447, 97 S. Ct. 1261, 1265, 51 L. Ed. 2d 464 (1977). The statutory framework setting forth the applicable administrative process allows for a resolution of all issues at the Commission level, with the opportunity for judicial review exclusively in the court of appeals. 29 U.S.C. §§ 659(c) and 660(a); Brennan v. Occupational Safety and Health Review Commission, 502 F.2d 30, 32 (5th Cir. 1974). The special review statute (29 U.S.C. § 660(a))⁴  which vests jurisdiction to review Commission orders in the court of appeals precludes the exercise of original jurisdiction by other courts in all cases covered by the special review statute. Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1279 (D.C. Cir. 1977).

In the present case, the jurisdictional determination was made by the Commission as a necessary part of its decision to assess the penalty against Howard. Such decision was reviewable by the court of appeals upon a timely filed petition seeking review. 29 U.S.C. § 660(a). Thus, judicial examination of the jurisdictional decision in this case is covered by 29 U.S.C. § 660(a), and the district court has no jurisdiction to examine the decision rendered by the Commission. Cf. United States v. McBride, 788 F.2d 1429, 1432-33 (10th Cir. 1986) (holding improper a collateral attack of an unappealed FAA suspension order in the district court enforcement action). Congress did not provide the district courts with the authority to entertain collateral attacks upon Commission decisions, and allowing such an exercise of authority in the context of a 29 U.S.C. § 666(l) collection action would effectively circumvent the exclusive, statutorily-created procedures and allow judicial review of Commission decisions by the district courts.

Likewise, this court is now without jurisdiction to grant the relief Howard requests. The provisions of 29 U.S.C. § 660(a) allow this court to review Commission orders if such orders are appealed within sixty days following the date they become final. Clearly, appeal was not taken within the sixty-day period. The sixty-day limitation on filing the appeal is jurisdictional, and Howard's failure to file an appeal within that period precludes this court from now reviewing the Commission's order. Consolidated-Andy, Inc. v. Donovan, 642 F.2d 778, 779 (5th Cir. 1981); Midway Industrial Contractors, Inc. v. Occupational Safety and Health Review Commission, 616 F.2d 346, 347 (7th Cir. 1980); Hoerner Waldorf Pan American Bag Co., Inc. v. Occupational Safety and Health Review Commission, 614 F.2d 795, 796 (1st Cir. 1980).

Howard's argument that it was prejudiced because it never received the notice of decision as mailed by the ALJ is meritless. It is undisputed that Howard received a copy of the order, knew the proper procedures for appealing to the Commission, and did in fact timely lodge such an appeal. Howard was not prejudiced by any failure to receive the notice of decision.

Howard also raises other arguments questioning the preclusive effect of the Commission's decision in the district court proceeding. However, because we hold that the district court did not have jurisdiction to examine the propriety of the penalty assessment, we need not address those arguments.

AFFIRMED.